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It appears from the submission of the parties that, indeed, the only relevant copyrights *61 held by Kamakazi are on the forty-five separate compositions. Robbins therefore urges specifically that the award with respect to those thirteen infringements be vacated, that the whole award be vacated because of the failure to specifically identify any infringed copyright, or, in the alternative, that further discovery be granted on this issue. Rather, Robbins presses that the arbitrator, in finding twenty-five infringements, including thirteen of compilations or derivative works, necessarily found infringements of works which were uncopyrighted, since Kamakazi never had any copyrights in such compilations or derivative works. § 410(c), each certificate constitutes 'prima facie evidence of the validity of the copyright and of the facts stated in the certificate.' Robbins, it appears, did not challenge the validity of these forty-five copyrights when the certificates were introduced during the arbitration proceedings and does not challenge them now. According to the copyright law, 17 U.S.C.

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Kamakazi has introduced, as exhibits to an affidavit in support of its motion, copies of the certificates of registration of copyrights on the forty-five musical compositions of Barry Manilow encompassed in the Kamakazi-Robbins agreement, which Kamakazi maintained were infringed.

Pending decision on this motion, the awards of the arbitrator have been held in abeyance. The parties were informed that the court would focus as well on the discrepancy between the consistent claim by Kamakazi of forty-five separate infringements and the finding of the arbitrator that twenty-five copyrights, comprising 'twelve individual works and thirteen compilations or derivative works,' had been infringed.

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at 131), and did not give Robbins a full opportunity to rebut Kamakazi's prima facie showing of validity represented by certificates of registration placed in evidence, the parties were invited to make further submissions in support of and in opposition to what was deemed to be Kamakazi's motion for summary judgment on this issue. However, as the arbitrator failed to expressly pass on the validity of the copyrights found to have been infringed (and perhaps lacked the power to do so, see opinion of August 3, 1981, 522 F.Supp.

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Briefly, in that opinion this court concluded that the arbitrator, in most essentials, properly disposed of the dispute placed before him by his determinations with regard to the Kamakazi-Robbins license agreement, his findings of infringements, and awards of damages and attorneys' fees with reference to the Copyright Act of 1976, 17 U.S.C. A detailed statement of the facts and the procedural history of this case is contained in the August 3 opinion, 522 F. The motion regarding validity of the Kamakazi copyrights follows upon this court's opinion in this action dated Augwhich addressed a motion by Kamakazi to confirm and a cross-motion by Robbins to vacate the awards of the arbitrator. For the reasons stated below, the Kamakazi motion to confirm the arbitrator's *60 award will be granted, the Warner motion to dismiss Robbins' counterclaim will be denied and the Kamakazi motion for a preliminary injunction will also be denied. The third set of motions relate to the Kamakazi motion for a preliminary injunction argued on Septemseeking to prevent further distribution of certain folios containing Kamakazi compositions.

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('Warner') to dismiss counterclaims asserted by defendant Robbins Music Corporation ('Robbins') and in the alternative seeking a separate trial of the issues. The second is the motion of plaintiff Warner Brothers Publications, Inc. This has been previously deemed by the court to be a motion for summary judgment by plaintiff Kamakazi on the issue of the validity of the Kamakazi copyrights found by the arbitrator to have been infringed. First is the motion by Kamakazi Music Corporation ('Kamakazi') to confirm the arbitrator's award. Y., of counsel.Ĭurrently before the court in this action for copyright infringement are several motions that will be dealt with in the order they were heard. Osterberg, New York City, of counsel.Įvans, Severn, Bankert & Peet, Utica, N. *58 *59 Bender & Frankel, New York City, for plaintiffs Sandor Frankel, New York City, of counsel.Ībeles, Clark & Osterberg, New York City, for defendant Robbins Music Corp. ROBBINS MUSIC CORPORATION and Vicks Lithograph, Inc., Defendants.

KAMAKAZI MUSIC CORP., Barry Manilow and Warner Bros.